2011 ofl conventionofl.ca/wp-content/uploads/2011.11.21-policy-2011convention-preven… · 2011...

2 0 1 1 O F L C o n v e n t i o nN o v e m b e r 2 1 - 2 5 , 2 0 1 1

ONTARIOFEDERATION OF

LABOUR

The Ontario Federation of Labour (OFL) represents 54 unions and one million workers. It is Canada’s largest provincial labour federation.

General inquiries regarding this document should be directed to: Ontario Federation of Labour (OFL) | Fédération du travail de l’Ontario (FTO)

15 Gervais Drive, Suite 202, Toronto, Ontario M3C 1Y8 Telephone: 416-441-2731 Fax: 416-441-1893 Toll-Free: 800-668-9138 Email: [email protected] TDD: 416-443-6305 Web: www.OFL.ca

Follow the OFL online: Twitter.com/OntarioLabour • www.Facebook.com/OntarioFedLabour • Flickr.com/OntarioFedLabour

COPE343

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Prevent Protect

CompensateFor The Next Generation

P o l i c y P a P e r

2 0 1 1 O F L c o n v e n t i o n

2 0 1 1 O N T A R I O F E D E R A T I O N O F L A B O U R c o n v e n t i o n

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Table of Contents

EXECUTIVE SUMMARY . . . . . . . . . . . . . . . . . . . . . . . . 3

WoRkERS’ CoMpEnSATIon . . . . . . . . . . . . . . . . . . . 5

ACTIon plAn . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

oCCUpATIonAl HEAlTH And SAfETY . . . . . . . . . 10

WoRkERS’ CoMpEnSATIon . . . . . . . . . . . . . . . . . . 19

P o l i c y Pa P e r • P R E v E N T, P R O T E c T, c O m P E N s AT E F O R T h E N E x T G E N E R AT I O N

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Kill a Worker Go to Jail/Bill c-45

We need to keep the pressure on employers to take their occupational health and safety responsibilities seriously and understand that if they kill a worker they could go to jail. The campaign cannot stop until we know that every workplace death is investigated by the police through a Bill C-45 lens and we start to see negligent employers sent to jail for killing workers.

expert Panel recommendations

Many important changes will not come into effect until the spring of 2012. Some recommendations cannot be acted upon until these changes come into effect. Labour will need to be vigilant to ensure the government lives up to its promises to ensure that the Review Panel’s rec-ommendations are implemented.

Protecting vulnerable Workers

Many solutions to protect the health and safety of the most vulnerable of Ontario workers can be found in amendments to health and safety legislation, better en-forcement, stronger reprisal protections, swifter action on reprisals and more prosecutions of employers who put workers in harm’s way.

Many of the root causes of what makes workers “vulner-able” in the first place lie outside the public policy area of workers’ health and safety. The solutions to protecting these workers also lie outside this policy area and will require changes in legislation and government policy at the provincial and federal levels.

violence in the Workplace regulations

More direction is needed from the Ministry of Labour (MOL) regarding risk assessments, particularly when as-sessing the risks from a person with a history of violence. Workers are still getting assaulted and the MOL is not adequately addressing concerns of violence when called to the workplace. Most employers are just doing minimal training on the legislation and maybe the policy.

Executive Summary


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Current legislation does not do enough to ensure work-ers are protected from these new bullying tactics. These are significant gaps that need to be filled through a regulation on violence and harassment.

education Sector regulations

Ironically, while the education sector has virtually the same hazards as industry there is NO sector regulation that applies to them. In addition to having the same haz-ards as virtually every sector of the Ontario economy, (but no regulatory protection other than the general duty clause); the education sector faces unique hazards and situations which an education-specific regulation could address.

agriculture regulations

None of the industrial style regulations apply to farming operations. Agricultural workers are not protected from hazards long known to kill workers. Requirements for equipment guarding, confined space lock-out and chem-ical exposures (WHMIS) still do not exist for agricultural workers.

ergonomic regulations

Ergonomic injuries continue to top the list of injuries in Ontario. Ontario needs to adopt a better strategy to address these debilitating injuries. Any regulation must contain requirements for lifting, including Materials and People.

engineered nano-Materials

For almost a decade researchers have been raising alerts with initial studies showing that some engineered nano-materials can cross a variety of protective barriers of living organisms. It will be important to develop a precautionary approach, introduce prevention strategies, foster good work practices and avoid occupational risks so that we may prevent an increase in occupational dis-ease and accidents. Regulators in Ontario and Canada

have an opportunity to learn from the past and take pre-cautionary measures today to prevent another tragedy in the future.

Precautionary Principle

The precautionary principle is recognized as a means to advance workers’ rights to safe and healthy workplaces and, by extension, healthier communities.

Behaviour Based Safety (BBS) Programs

BBS is in conflict with the more modern and realistic prevention strategy of the hierarchy of control principle which calls first for controls at the source, such as use of engineering controls, substitution of toxic materials, etc; then controls along the path such as local ventilation; then using personal protective equipment and admin-istrative controls. The most appropriate place to focus behaviour modification is on those employers who con-tinue to place workers in harm’s way.


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cost of living allowance (cola)

Injured workers are forced to live in poverty because their compensation is not adjusted for inflation. Injured workers deserve full inflation protection now.

Deeming

Section 43 of the Workplace Safety and Insurance Act, 1997 allows the Board to deem a worker to have earn-ings related to a suitable employment or business and to set the worker’s loss of earnings benefits based on such deemed earnings regardless of whether the worker has actually secured employment after suffering a work-place injury. The Act should be amended to eliminate deeming to ensure that the basis for wage loss is cal-culated on the actual wage loss incurred after an injury.

increase average earnings amount from 85% to

90% of net average earnings

This is a reduction which significantly impacts injured workers’ ability to maintain their pre-injury standard of living. The average earnings amount should be restored to 90% of net average earnings.

remove cap on compensation Benefits

For workers with relatively high incomes at the time of injury, the requirement that wage loss benefits be capped can have a significant negative impact to an in-jured worker and his or her family. The legislation must be amended to remove the cap on wage loss benefits.

remove the age cut-off for Future economic loss

(Fel) and loss of earnings (loe) Benefits

The age cut-off for FEL and LOE benefits allows for older workers who become permanently disabled due to a workplace injury to be discriminated against on the basis of their age. The legislation must be amended to remove the age cut-offs in the Act.

Workers’ Compensation


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employment Benefits and canada Pension Plan

(cPP)

The current WSIA requires WSIB to deduct CPP disability benefits from WSIB benefits. This is unfair, since the CPP is funded completely from worker and employer contri-butions. The WSIA should be amended to stop the de-duction.

restriction on entitlement for Mental Stress

This is arguably a violation of the equality provisions of the Charter and the Human Rights Code in that it dis-criminates against mentally disabled workers based on the nature of their disability. The Act should be amended to remove the restriction on mental stress.

the new Work reintegration Program

To help improve return to work outcomes for injured workers, the Workplace Safety and Insurance Board re-leased a new “Work Reintegration Program.” Under the new Program, the WSIB is to ensure quality work transi-tion services and cost management by using commun-ity colleges and registered private career colleges with Ministry of Training, Colleges and Universities approved vocational programs.

The elimination of external LMR service providers is a positive step and not an insignificant victory for workers and the labour movement. At a minimum, the return of this function to the WSIB will lead to greater account-ability in the system. The OFL fundamentally supports the principles of a new work reintegration strategy. How-ever, a successful evolution of the WSIB’s new strategies will only be accomplished by a sincere commitment by the Board to provide education and enforce compliance. The labour movement must maintain the momentum in-itiated by the change in philosophy demonstrated by the WSIB’s new approach to work reintegration. Policy needs to reflect clear roles and responsibilities on when and how the WSIB will intervene in return to work.

We know that in many cases the offer of work is not fully explained or understood before the worker undertakes an attempt to perform it. It is therefore imperative that WSIB decision-makers proceed with due caution when determining that a particular job offer is “safe.” The OFL suggests that decision-makers ought to adopt the “pre-cautionary principle” when considering the suitability and safeness of a job offer.

eliminate experience rating

Experience rating for Schedule 1 employers has been voluntary since 1953 and mandatory since 1995. Yet there is no empirical evidence that experience rating promotes investment in prevention or RTW strategies. In fact, experience rating promotes bad practices as stra-tegic and dubious practices lead an employer to finan-cial rewards faster than with proper commitment and investment in health and safety and accommodation. The labour movement has called for the elimination of experience rating for years.

WSiB Funding review

The OFL and its social partners are actively participat-ing in the Funding Review’s consultation process. Our primary goal is the restoration of full inflation indexing for injured workers within a sustainable, public work-ers’ compensation system, funded on a steady state basis similar to CPP.


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The Ontario Federation of Labour, in co-operation with its affiliates and social partners, will work to advance the health and safety and workers’ compensation principles contained in this policy paper.

1. The OFL and its affiliates will continue the “Kill a Worker Go to Jail” campaign until every workplace death is investigated by the police through a Bill C-45 lens.

2. The OFL and its affiliates will continue to lobby the provincial government to implement the Expert Panel recommendations.

3. The OFL will work with affiliates, the Canadian Labour Congress and progressive partners to identify and attack the root causes of what makes workers vulnerable.

4. The OFL and its affiliates will continue to lobby for violence in the workplace regulations under the Occupational Health and Safety Act to better protect workers from violence, harassment and bullying.

5. The OFL and its affiliates will work with the building and construction trades unions and affiliates impacted by the underground economy to identify strategies to combat the underground economy at the provincial and municipal level. Further, the OFL will work with affiliates and the Canadian Labour Congress to do the same at the federal level.

6. The OFL and its affiliates will lobby to bring about education sector regulations to address hazards and improve worker protection in the sector.

7. The OFL and its affiliates will lobby to bring about agricultural sector regulations to address hazards specific to the sector and improve worker protection.

8. The OFL and its affiliates will continue to lobby for ergonomic regulations.

9. The OFL and its affiliates will work to educate our members about the hazards of engineered nano-materials and lobby to improve protection from worker exposure to nano-materials.

Action Plan


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19. The OFL and its affiliates will urge local unions and labour staff to negotiate collective agreement language which will provide paid time for local union representatives to help co-workers fill out their application for workers’ compensation benefits in order that all workplace injuries are recorded with the Board. Paid time should also be negotiated for local union representatives to represent members who are appealing a Board decision. Paid access to the necessary training for local union activists through the OFL’s Occupational Disability Response Team (ODRT) must also be negotiated.

20. The OFL and its affiliates will continue to develop a strong working relationship with the Ontario Network of Injured Workers Groups, especially at the community level, by encouraging labour councils to establish relationships with ONIWG member groups in communities where they exist and work to build new ONIWG member groups in other communities.

21. The OFL and its affiliates will re-affirm with local union leadership and labour staff that injured workers should be provided with representation within the workers’ compensation system at no cost.

22. The OFL and its affiliates will lobby the WSIB to amend policy so that it contains more detail and guidance on when and how the WSIB will intervene and provide guidance and support in return to work.

23. The OFL and its affiliates will lobby the WSIB to amend policy so that it contains a formal RTW opportunities hierarchy.

24. The OFL and its affiliates will lobby the WSIB to amend policy so that it includes the references regarding time to heal from the WSIB best approaches guide entitled “Recognizing Time to Heal-Assessing Timely and Safe Return to Work.”

10. The OFL and its affiliates will continue to lobby the government to have the precautionary principle included in the Occupational Health and Safety Act.

11. The OFL will work with its affiliates and the Workers Health and Safety Centre (WHSC) to educate our members about Behaviour-Based Safety programs and develop strategies to combat them.

12. The OFL and its affiliates will launch an aggressive campaign, in co-operation with labour councils and the Ontario Network of Injured Workers Groups, to raise public awareness of the inequities faced by injured workers and to encourage government to move forward with workers’ compensation reform.

13. The OFL and its affiliates will lobby the provincial government to institute full cost of living allowance retroactively.

14. The OFL and its affiliates will lobby the provincial government to ensure all workers are covered by the Workplace Safety and Insurance Act (WSIA).

15. The OFL and its affiliates will lobby the provincial government to eliminate deeming and pay injured workers benefits based on workers’ true post-accident earnings. Further, the OFL and its affiliates will lobby the government to review the earnings of workers already deemed and adjust their benefits to reflect their true post-accident earnings.

16. The OFL and its affiliates will lobby the WSIB to eliminate experience rating.

17. The OFL and its affiliates will continue to lobby the Workplace Safety and Insurance Board to continue to fund the OFL’s Occupational Disability Response Team and expand the funding for the new disability prevention work reintegration project.

18. The OFL and its affiliates will urge local unions and labour staff to negotiate Return to Work language and modified work arrangements which include a role for joint return to work committees. Should return to work be denied for any reason, resulting in a reduction or termination of benefits, the employer must be responsible to make up the loss.


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25. The OFL and its affiliates will lobby the WSIB to amend policy so that the definition of functional abilities includes consideration of the worker’s psychological functioning including any psychological impact of or negative reaction to the injury and/or proposed return to work options. The policy should also reflect that RTW plans must consider that pain can limit a worker’s functional abilities.

26. The OFL and its affiliates will lobby the WSIB to amend policy so that the requirement that a worker’s benefits be adjusted immediately following a finding that offered work was suitable be deleted from the policy. An appropriate process should be identified that includes appropriate inquiry, investigation and education prior to adjustment of benefits.

27. The OFL and its affiliates will lobby the WSIB to adopt a precautionary principle regarding RTW determinations.

28. The OFL and its affiliates will lobby the WSIB to amend policy so that it is a requirement of WSIB staff to consider work offers that involve a combining of work tasks to ensure that health and safety risks are not increased to other workers and that this approach is not used simply to avoid lost time cases.

29. The OFL and its affiliates will lobby the WSIB to amend policy so that it expressly recognizes that some workers are competitively unemployable and permit decision-makers to make such a finding. The policy should also ensure that permanently unemployable workers are properly identified at the work transition assessment stage and not required to endure unnecessary work reintegration services.

30. The OFL and its affiliates will lobby the WSIB to amend policy so that the WSIB is added to the list of parties expected to comply with human rights legislation and associated policies.

31. The OFL and its affiliates will lobby the WSIB to amend policy so that direct to placement options are the exception rather than the rule, and are considered only after thorough and careful consideration of other options.

32. The OFL and its affiliates will lobby the WSIB to amend policy so that the three-year limit on work transition plans should be deleted. At a minimum, the policy should expressly allow for longer plans where appropriate.

33. The OFL and its affiliates will lobby the government to amend the legislation so as to properly and fairly compensate victims and survivors of occupational disease.


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Occupational Health and Safety

Kill a Worker Go to Jail/Bill c-45

Following a 12-year struggle led by the USW, Bill C-45 amended the criminal code and brought in special crim-inal negligence provisions for companies that disregard the health and safety of workers. The intent was to hold employers criminally liable for the deaths of workers.

Since the C-45 amendments became the law in 2004, there have been more than 400 traumatic workplace fa-talities. Every worker who is killed at work deserves to have the police look into that death. They and their fam-ily deserve to know the police have done more than rule out foul play and that they have looked at criminal neg-ligence as a possible cause. Unfortunately, it has been our experience that few front line police officers are even aware of the changes to the criminal code made by C-45. In the years since the bill became law, it has seen little use. It is up to labour to change that.

Bill C-45 must become routinely integrated into provin-cial responses to death and injury. Every worker who is killed at work deserves to have their death investigated through the lens of C-45.Too many irresponsible em-ployers and managers will only get the message when they too have their futures at stake.

We need to keep the pressure on employers to take their occupational health and safety responsibilities seriously and understand that if they kill a worker they could go to jail. The campaign cannot stop until we know that every workplace death is investigated by the police through a C-45 lens and we start to see negligent employers sent to jail for killing workers.

expert Panel recommendations

Early in 2010 the government announced an Expert Panel to review health and safety in Ontario. The panel was made up of representatives from labour, employers and academia. It was chaired by former Secretary of the Cabinet and Clerk of the Executive Council, Tony Dean. Following a nearly year-long review of Ontario’s occu-pational health and safety prevention and enforcement


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systems, the panel presented the Minister of Labour with a report which included forty-six recommendations in-cluding a list of identified priorities.

Recommendations included:

• Additional requirements on training for workers and supervisors

• Better protections for the most vulnerable• Improvements to reprisal protection• Actions to combat the underground economy• A new prevention organization with a Chief

Prevention Officer to develop and co-ordinate prevention initiatives and strategies with the prevention system and the enforcement arm of the Ministry of Labour

• Government procurement policies to include health and safety

• Supports for the Internal Responsibility System• Additional enforcement tools and penalties

The government accepted the recommendations of the Review Panel in December 2010. The government then in-troduced Bill 160 as the enabling legislation to carry out the priority recommendations. It was passed unanimously in May, 2011 and received Royal Assent on June 1, 2011.

Many important changes will not come into effect until the spring of 2012. Some recommendations cannot be acted upon until these changes come into effect. Labour will need to be vigilant to ensure the government lives up to its promises to ensure that the Review Panel’s rec-ommendations are implemented.

Protecting vulnerable Workers

Who is a vulnerable worker is subject to debate. It can be argued that some unionized workers are still vulner-able. In particular, those unionized workers who work part-time or in sectors that are low wage and have low rates of unionization. At least in these cases the work-ers are provided with a voice, due process and collective bargaining. Any worker facing the threat of job loss will certainly feel vulnerable.

The Law Commission of Ontario has described vulnera-ble workers as “…found disproportionately among white women, among men and women of particular racialized groups and persons with a disability or disabilities. We are referring to these characteristics as workers’ “social location”, a term that includes gender, “race”, immigrant status, age, ability and other sources of marginalization.”1

For purposes of occupational health and safety the term “vulnerable workers” has been described as, “…those who have a greater exposure than most workers to conditions hazardous to health or safety and who lack the power to alter those conditions. During the course of this review, stakeholders identified a number of subgroups of the general workforce as being vulnerable. The Panel heard most often about young workers; recent immigrants; workers new to their jobs or in new firms; foreign work-ers hired to address temporary or seasonal labour short-ages and employed primarily in agriculture, the hotel/hospitality and construction sectors; workers with very low wages holding multiple part-time jobs; and workers in the temporary staffing industry.2

It has been recognized that workers may feel or be vul-nerable for a number of reasons, “not knowing one’s rights under the OHSA, such as the right to refuse unsafe work; having no work experience or training that is job or hazard-specific; and being unable to exercise rights or raise health and safety concerns for fear of losing one’s job, or in some cases being deported.”3

The list of workers who could be described as vulner-able is extensive: Workers brought to Canada under one of the temporary foreign worker programs run by the Federal government, live-in caregivers, taxi workers, hotel workers, injured workers, migrant workers, young workers, those working for temp agencies, or working in the underground economy, single parents, workers who

1 The Law Commission of Ontario, Vulnerable Workers and Precarious Work Consultation Paper, December 2010.

2 Expert Advisory Panel on Occupational Health and Safety, Report and Recommendations to the Ministry of Labour, December, 2010.

3 Ibid.


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face discrimination based on gender, sexual orientation, race, etc.

The issue of vulnerable workers is a topic where occupa-tional health and safety overlaps into other public policy areas such as human rights, immigration, poverty, acces-sibility and most importantly, the right to join a union and collectively bargain.

Many solutions to protect the health and safety of the most vulnerable of Ontario workers can be found in amendments to health and safety legislation, better en-forcement, stronger reprisal protections, swifter action on reprisals and more prosecutions of employers who put workers in harm’s way. Many of the root causes of what makes workers “vulnerable” in the first place lie outside the public area of workers’ health and safety. The solu-tions to protecting these workers also lie outside this policy area and will require changes in legislation and government policy at the provincial and federal levels.

violence in the Workplace regulations

This is still a huge issue for affiliates. More direction is needed from the Ministry of Labour (MOL) regarding risk assessments, particularly when assessing the risks from a person with a history of violence. Specifically, many workplaces are doing the environmental risk assess-ment, but in workplaces where employees work with people, the risks from specific persons are not being assessed properly. Nor are they accompanied by appro-priate measures and procedures being put into place to address identified risks. For example, in Developmental Services, staffing numbers are a huge issue as workers often work alone or transport clients. Community Liv-ing Associations also have much less choice in accepting clients and often must accept clients that the facility or staff members are not equipped to care for. In one facil-ity in Northern Ontario, the same worker was assaulted June 1, 2011 and then 12 days later on June 13, 2011 by a different client. The employer’s response was made up of “reminders” for workers to recall past training, remind-ers of the safe radius around the client, and reminders

of the protocols. NO new measures and procedures were implemented to prevent future occurrences. Nothing changed and the assaults will continue. Many employers choose to blame the victim and are not willing to revise their program measures and procedures to ensure they protect workers.

In June 2010, Bill 168 came into effect amending the Occupational Health and Safety Act (OHSA) to include obligations to protect workers from violence and ha-rassment. One weakness is that it does not require the employer to develop the training in consultation with Joint Health and Safety Committees (JHSC) or health and safety representatives.

This is still a serious concern for many affiliates. Work-ers are still getting assaulted and the Ministry of Labour is not adequately addressing concerns of violence when called to the workplace. Most employers are just doing minimal training on the legislation and maybe the pol-icy which is not training workers on the measures and procedures. Employers are not reassessing risks or put-ting in place control measures and they are not revising their program measures and procedures to ensure they protect workers.

The emergence of social media has provided another avenue for harassment and bullying. Cyber-bullying has emerged as a serious issue for many workers, especially those in the public sector. Cameras in cell phones al-lows for pictures and videos to be taken of workers and posted on the internet. Transportation workers, educa-tion workers, and those in social services are just some of the areas where workers have been photographed, video recorded and had their images posted on the in-ternet. In some cases, these activities place the safety of the workers and their families in danger from clients, customers, etc.

Current legislation does not do enough to ensure work-ers are protected from these new bullying tactics. These are significant gaps that need to be filled through a reg-ulation on violence and harassment.


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Health and Safety and the Underground economy

What is the “underground” economy? According to Wiki-pedia: “There is no single underground economy, there are many. These underground economies are omnipres-ent, existing in market oriented as well as in central-ly planned nations, be they developed or developing. Those engaged in underground activities circumvent, escape or are excluded from the institutional system of rules, rights, regulations and enforcement penalties that govern formal agents engaged in production and exchange. Different types of underground activities are distinguished according to the particular institutional rules that they violate.”4

According to the Canada Revenue Agency: “underground economic activity is particularly prevalent in industry sectors where cash transactions are common, such as hospitality, automotive repairs and construction, includ-ing home renovations.”5

A recent Globe and Mail article6 cited a Statistics Canada report which estimated Canada’s underground economy at $36 billion as of 2008. It is most prevalent in construction, followed by retail, accommodations then food services.

With the prevalence of an underground economy in the construction sector, it is not surprising that this is a major concern for Ontario’s construction and building trades unions. Many legitimate employers in the sector have also raised serious concerns about the increase of underground economy operators in construction.

A recent report7 by the Carpenters District Council of Ontario states: “The underground economy is important first because it puts at risk a significant number of con-struction workers whose employers deliberately operate outside the ambit of the Workplace Safety and Insurance Act and who are more concerned to avoid liability for construction injuries than to prevent them . Equally im-portant, the underground economy contaminates the competitive environment and forces legitimate contrac-tors to cut corners . In an industry where the lowest bid-der usually wins the work, the underground economy

creates powerful incentives that diminish or thwart the efforts of the WSIB, the Ministry of Labour, the Infra-structure Health and Safety Association, industry asso-ciations and trade unions to achieve better health and safety performance in the construction industry.”

The International Brotherhood of Electrical Workers (IBEW) has also written8 on the impact of the Under-ground Economy.

“The greatest threats to electrician safety posed by the underground economy are as follows:

• Worker safety risks• Offloading of insurance premiums and taxes from

engages to workers• Taking advantage of immigrant, vulnerable and

non-English-speaking workers• Engaging workers with no union rights or

representation, typically with perfunctory compliance with health and safety laws

• These workers have ZERO possibility of saying NO when their employers ask them to work in a risky situation representing a form of exploitation by invitation.”

The Ontario Construction Secretariat (OCS) is an orga-nization that was established jointly by unions and con-tractors in the construction sector to work on issues of common concern. The underground economy is a con-cern the OCS has been focusing on for almost twenty years. Their most recent report on the issue9 states:

4 http://en.wikepedia.org.wiki/Black_market

5 http://www.craarc.gc.ca./undergroundeconomy/.

6 Canada’s underground economy tops $30-billion Globe and Mail, June 28, 2011.

7 Carpenters District Council of Ontario, Submission to the work-place Safety Review Panel, June 2010.

8 International Brotherhood of Electrical Workers Construction Council of Ontario Submission to the Expert Advisory Panel on Oc-cupational Health and Safety in Ontario, June 28, 2010.

9 Ontario Construction Secretariat, Underground Economy in Con-struction – It Costs Us all, July 2010, Prepared by Prism Economics & Analysis.


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“The scale of the underground economy in Ontario construction industry continues to be a serious threat to labour standards and to a level playing field for contractors. The most important underground practice is classing as ‘independent operators’ workers who should be classed as employees. By styling workers as ‘independent operators’, contractors achieve an unfair and illegitimate competitive advantage that can range from 20% of labour costs to as much as 50%. As well, these contractors may also avoid or diminish important employer obligations under the Occupational Health and Safety Act.”

The underground economy not only undermines workers’ health and safety; it undermines other workers’ rights including the right to organize. The scale of it interferes with government’s ability to maintain public services at the municipal, provincial and federal levels.

education Sector regulations

Ironically, while the education sector has virtually the same hazards as industry, there is NO sector regulation that applies to them. For example, colleges, universities and even high schools have technical areas where stu-dents learn (and teachers teach) manual trades, such as, electrical, welding and carpentry. Medical schools face the same hazards found in the health care sector.

Education environments face a huge regulatory gap when it comes to the protection of education workers.

In addition to having the same hazards as virtually every sector of the Ontario economy, the education sector fac-es unique hazards and situations which an education-specific regulation could address, such as:

• Definition of worker-When are teaching assistants workers and when are they students?

• Workplace definitions for universities, colleges and schools

• Effective health and safety structures for education facilities that span more than one street address or

may have more than one hundred sites or be under one board

• Injury reporting in complex structures• Student residences and inappropriate activities• Infectious diseases-human biological agents

agriculture regulations

There has been limited progress to protect the health and safety of Ontario’s farm workers. Many of the indus-trial style farming operations such as green house and mushroom operations are covered under the Occupation-al Health and Safety Act (OHSA) as are cattle, dairy, poul-try and hog farms. Unfortunately, none of the industrial style regulations apply to farming operations.

Agricultural workers are not protected from hazards long known to kill workers. Requirements for equipment guarding, confined space lock-out, chemical exposures (WHMIS), still do not exist for agricultural workers. The McGuinty government had promised to introduce health and safety regulations to protect farm workers one year after the coverage under the OHSA came into effect. That promise was broken.

The evidence that action needs to take place now to pro-tect farm workers is over whelming.10

10 J. McLaughlin & J.L. Hennebry, “Backgrounder on Health and Safety for Migrant Farmworkers” IMRC Policy Points, Issue I, December 1, 2010. International Migration Research Centre, Waterloo, Ontario.

J. Hennebry, K. Preibisch, and J. McLaughlin, 2010. “Health across borders - Health status, risks and care among transnational mi-grant farm workers in Ontario.” CERIS Ontario Metropolis Centre: Toronto, Ontario. Available online at www.wlu.ca/imrc. Report fea-turing nearly 600 standardized questionnaires with Mexican and Ca-ribbean migrant farm workers in Ontario.

J. McLaughlin, 2009. Trouble in our fields: Health and human rights among Mexican and Caribbean migrant farm workers in Canada. Doctoral thesis, Dept. of Anthropology, University of Toronto. Ethno-graphic study of health issues among Mexican and Jamaican migrant farm workers in Ontario based on over three years of research with over 350 workers.

G. Otero and K. Preibisch, 2009. “Farm worker health and safety: Challenges for British Columbia.” Report based on a survey of 100 Mexican migrant workers in British Columbia.


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Canadian agricultural workers face more hazards in the workplace than their counterparts from many other oc-cupations.11

Migrant workers also face significant health risks that are tied to their working conditions, in particular be-cause they must perform repetitive tasks, heavy lifting and are untrained and unprotected in handling chemi-cals in the workplace. When asked if they have received health and safety training, most Mexican workers said that they had not received training.

In addition, poor field sanitation and untrained use of fertilizers heighten the potential for increased points of human contact with food and water-borne disease, as well as potential food contamination (e.g. E. Coli and salmonella).

In particular, the untrained and unprotected use of fer-tilizers (e.g. manure) and irrigation systems, poor field sanitation, and poor food handling practices (e.g. lack of gloves, contact with human or animal waste, lack of washing facilities) put the TFWs at risk of contracting these diseases. Almost half of the respondents indicated that they have no access to a washroom or washing fa-cilities while working. For example, one worker stated: “There are no portable washrooms (where we work)…If I have to go…I go in the field or I wait until I go home. There is also nowhere to wash your hands.” Despite these concerns, fear of repatriation means that migrants are less likely to report unsafe practices or to refuse unsafe work: “Supervisors threaten to replace us with Cambodians if we don’t work hard enough. Employees are repatriated for reporting abusive supervisors or dangerous workplac-es. These working conditions impact migrant health and heighten health risks for workers.”12

11 Summary report on Agricultural Injuries in Canada, A Report from the Canadian Agricultural Injury Surveillance Program (CAISP), 2003 http://cair-sbac.ca/natsum.pdf.

12 Not Just a Few Bad Apples: Vulnerability, Health and Temporary Migration in Canada, March 2010, Dr. Jenna Hennebry, Associate Director, International Migration Research Centre.

Prayer of the Farm Workers’ Struggle

Show me the suffering of the most miserable; So I will know my people’s plight.

Free me to pray for others; For you are present in every person.

Help me to take responsibility for my own life; So that I can be free at last.

Grant me courage to serve others; For in service there is true life.

Give me honesty and patience; So that I can work with other workers.

Bring forth song and celebration; So that the spirit will be alive among us.

Let the spirit flourish and grow; So we will never tire of the struggle.

Let us remember those who have died for justice; For they have given us life.

Help us to love even those who hate us; So we can change the world.

Written by Cesar E. Chavez – UFW Founder, (1927-1993)


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The federal and provincial governments have worked with the big agri-business lobby to exploit farm workers and try to keep them powerless and voiceless. The fed-eral government has, for many years, run Canada’s Sea-sonal Agricultural Workers Program (SWAP) which brings farm workers into Canada temporarily. These workers are tied to working for one employer and can be sent home on 24-hour notice for any reason. If a worker complains about their health and safety, the state of their living conditions or try to report a workplace injury or illness, they can be sent home.

Farm workers continue to be prohibited from joining unions and engaging in collective bargaining in Ontario. The ability to collectively bargain would provide a stron-ger voice for agricultural workers and create opportuni-ties to ensure that what little health and safety legisla-tion exists is adhered to and built upon.

Our members and other Ontario workers work hard to en-sure their families have food on the table. Farm workers work hard to ensure that food is there to put on the table.

Just because farm workers work the land does not mean our governments get to treat them like dirt.

ergonomic regulations

Ergonomic injuries continue to top the list of injuries in Ontario. While guidelines have been developed and are useful for JHSC and the few employers who are prepared to act on ergonomic issues, too many employers will only act when required by law. Ontario needs to adopt a better strategy to address these debilitating injuries. Other provinces have regulations to deal with ergonom-ic hazards. Ontario should as well.

Any regulation must contain requirements for lifting in-cluding Materials and People.

engineered nano-Materials

Nanotechnology is advancing faster than our under-standing of its long-term health and environment con-sequences. Scientists are manipulating substances and

engineering them into hallow spheres or tubes using in-terconnecting hexagons or pentagons at sizes less than one hundred nanometers and in some cases as small as one nanometer. A human hair ranges seventy to eighty thousand nanometers in diameter.

Nano-sized dust particles have been around longer than human beings; it is the engineering at the nano-scale that is new. These engineered nano-materials have chemical, mechanical, electrical and biological proper-ties which are unique and very different from the prop-erties of the same substance existing as a dust particle. This uniqueness has created a great deal of interest in the commercial and medical potential of these new materials. This uniqueness also means that many of the occupational and environmental standards currently in place are meaningless for these engineered nano-ma-terials.

While research has shown great and exciting promise for the potential usefulness of these materials, we know from experience that just because a substance is useful does not mean it is safe for human health or the envi-ronment. Examples such as asbestos, PCBs, CFCs, DDT, tetraethyl lead and others remind us of this fact. We are also reminded of the consequences of poor regulation and control before these substances were widely used in commerce. We have an opportunity to learn from the mistakes of the past and ensure that workers, the public and the environment are protected. The consequences of not doing so may lead to tragic consequences for workers, their families and their communities as well as costly cleanup efforts, legal and political battles.

For almost a decade researchers have been raising alerts with initial studies showing that some engineered nano-materials can cross a variety of protective barriers of living organisms; barriers such as intestinal, placental and even the blood-brain barrier, as well as individual cellular membranes. This will allow these nano-materi-als to interact with living cells in ways we cannot even anticipate. Different shapes of these materials result in different reactions as does various coatings that these


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materials can be covered with. All of which can make them more or less toxic to varying degrees.

Research on animals and aquatic organisms has shown a wide range of effects from short-term exposures. One study, published in Environmental Health Perspectives in 2004, showed damage to the brain cell membranes of largemouth bass after just forty-eight hours of ex-posure in an aquarium13. The impact on filter feeders in the aquatic environment is unknown. Nor do we know if these nano-materials will concentrate in the tissues of other species as they move up the food chain. Some of the materials, when formed into hallow tubes have been shown to have effects on the lungs of laboratory animals similar to asbestos.

Important research is taking place in Québec on the possible health impact of nano-materials. One recent re-port prepared by the Institut de recherché Robert-Sauvé en santé et en securité du travail (IRSST) stated: “Sev-eral effects have already been shown in animals. Among these toxic effects have been identified in several or-gans (heart, lungs, kidneys, reproductive system…”)14

Another report, released in 2010 raises an important question, and then provides the answer: “Indeed, how does one assess the risks associated with these new products, and prevent the rise of occupational disease or new safety problems when the information available is extremely limited and totally insufficient?

…it will be important to develop a precautionary ap-proach, introduce prevention strategies, foster good work practices and avoid occupational risks so that we may pre-vent an increase in occupational disease and accidents.”15

These nano-materials are already in use in commercial products with an estimated one thousand products con-taining engineered nano-materials. The rate of produc-tion increases each year. As with other substances that were later found to be a public health or environmental disaster, these materials are being treated as innocent until proven guilty.

Initial research in China looking at exposures to nano-materials is linking lung inflammation, damage and tox-icity to the substance.16

Regulators in Ontario and Canada have an opportunity to learn from the past and take precautionary measures today to prevent another tragedy in the future. Much more research is needed before these engineered nano-materials should be allowed to be released on a massive scale in our workplaces, on an unsuspecting public and an unprotected environment.

Precautionary Principle

The precautionary principle is recognized as a means to advance worker rights to safe and healthy workplaces and, by extension, healthier communities.

It was also repeatedly stressed by Justice Archie Camp-bell who headed up the SARS Commission and was listed in the first three recommendations. This principle provides for more meaningful involvement of workers in decisions which affect their health and safety.

13 Manufactured Nano-materials (Fullereness, C60) Induce Oxidative Stress in the brain of Juvenile Largemouth Bass (July 2004).

14 Health effects and Nanoparticles R-589 (October 2008). http://www.irsst.qc.ca/media/documents/PubIRSST/R-589.pdf.

15 Engineered Nanoparticles: Current Knowledge about Occupational Health and Safety risks and Prevention Measures R-656 (July 2010). http://www.irsst.qc.ca/media/document/PubIRSST/R-656.pdf.

16 Y. Song, X. Li and X. Du, Exposure to nanoparticles is related to pleural effusion, pulmonary fibrosis and granuloma, European Re-spiratory Journal, September 1, 2009, vol. 34 no.3.

Yuguo Song, Xue Li, Liying Wang, Yon Rojanasakul, Vincent Castra-nova, Huiling Li, Jing Ma, Nanomaterials in Humans Identification, Characteristics, and Potential Damage, Toxicologic Pathology, Aug. 2011, vol. 39 no. 5

Jasmine Jia’en Li, Sindu Maralikrishnan, Cheng-Teng Ng, Lin-Yue Lanry Yung and Boon-Huat Bay Nanoparticle-induced pulmonary toxicity, Experimental Biology and Medicine, Sept. 1/2010 vol.235, number 9.


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Justice Campbell in his report to the government stated:

“Perhaps the most important lesson of SARS is the importance of the precautionary principle. SARS demonstrated over and over the importance of the principle that we cannot wait for scientific certainty before we take reasonable steps to reduce risk. This principle should be adopted as a guiding principle throughout Ontario’s health, public health and worker safety systems.”17

He also told the government, “…we should not be driven by the scientific dogma of yesterday or even the scien-tific dogma of today. We should be driven by the pre-cautionary principle that reasonable steps to reduce risk should not await scientific certainty.”18

Behaviour Based Safety (BBS) programs

BBS programs are a new twist on the old Myth of the Careless Worker. This myth first became popular with employers in the 1930’s when an insurance investiga-tor reviewed accident reports written by supervisors. Not surprisingly most placed the blame for the accident on the worker. From this the myth of the careless worker was born. BBS programs focus on the actions of the worker that preceded the accident rather than looking at the root causes such as poor workplace design, lack of training, understaffing, etc. BBS programs typically have a supervisor and co-workers assigned to watch and note when they commit an unsafe act or perform a safe be-haviour.

17 The SARS Commission Report, Spring of Fear, December, 2006.

18 Ibid.

BBS is in conflict with the more modern and realistic prevention strategy of the hierarchy of control principle which calls first for controls at the source, such as use of engineering controls, substitution of toxic materials, etc; then controls along the path such as local ventilation; then using personal protective equipment and adminis-trative controls.

The most appropriate place to focus behaviour modi-fication is on those employers who continue to place workers in harm’s way.

The Workers Health and Safety Centre (WHSC) has a three-hour module called “Safety and the Myth of Work-er Carelessness” which addresses this myth in whatever form it takes. This is an important resource in educating our membership about BBS.


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Workers’ Compensation

cost of living allowance (cola)

Employers have received a windfall benefit in the form of a 24.7% rollback in their costs for workers’ compensation coverage since 1995, while injured workers are forced to live in poverty because their compensation is not ad-justed for inflation. In this same period, injured workers have seen their benefits reduced 19.5% due to inflation, despite the 7.5% increase given to them under Bill 187 which gave them a 2.5% increase on July 1, 2007 and an-other 2.5% on January 1, 2008 and January 1, 2009. Injured workers deserve full inflation protection now.

coveraGeexpanded coverage in the construction Sector

Bill 119 which extends mandatory coverage to inde-pendent operators and sole proprietors will also make it mandatory that executive officers and partners em-ployed or working in construction pay premiums on their earnings to the Workplace Safety and Insurance Board (WSIB). The Workplace Safety and Insurance Act (WSIA) and O.Reg. 47/09 allow one partner or one executive officer to be exempt if they do not do any construction work and a declaration is filed with the WSIB.

Bill 119 creates penalties for:

• Independent operators in construction who fail to register with the WSIB within 10 days

• Contractors who fail to get a clearance certificate before allowing an independent operator to start construction work, fail to get a new clearance certificate if the certificate expires or is revoked, or fail to keep a certificate for at least three years, and

• Independent operators who fail to immediately tell the person who has hired him/her that the clearance certificate has been revoked, and does construction work for a person without a valid clearance certificate.

Bill 119 empowers the WSIB to create a named insured system to identify workers performing construction work. A named insured system may require employers to


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provide the WSIB with the identity of each worker and the worker’s earnings. It may also require construction workers to carry a special ID card whenever performing construction work and to show it to the WSIB if asked.

The WSIB is now developing the policies and adminis-trative processes that are required to implement this legislation when it comes into effect in 2012.

Deeming

Section 43 of the WSIA 1997 allows the Board to deem a worker to have earnings related to a suitable employ-ment or business and to set the worker’s loss of earnings benefits based on such deemed earnings regardless of whether the worker has actually secured employment after suffering a workplace injury.

Although deeming was introduced to the system by the 1989 amendments to the Workers’ Compensation Act (WCA), the current system allows for a level of deem-ing that disentitles a far greater number of workers than under the previous system. This is especially so for per-manently impaired workers. Deeming in effect transfers the cost of many workplace injuries to other provincial and federal social programs and thus to the taxpayers of Ontario and Canada. The Liberal government introduced Bill 187 on July 1, 2007 which the Minister stated would eliminate deeming. The WSIB developed new policies that actually made deeming worse. The Act should be amended to eliminate deeming to ensure that the basis for wage loss is calculated on the actual wage loss in-curred after an injury.

increase average earnings amount from 85% to

90% of net average earnings

Another important way in which injured workers’ ben-efits were affected by the WSIA is the reduction from 90% to 85% of net average earnings as the basis for wage loss benefits. This is a reduction which significant-ly impacts injured workers’ ability to maintain their pre-injury standard of living, especially for workers affected

by the COLA provisions discussed above and the cap on benefits discussed below. The average earnings amount should be restored to 90% of net average earnings.

remove cap on compensation Benefits

For workers with relatively high incomes at the time of injury, the requirement that wage loss benefits be capped at a maximum on 175% of the average industrial wage can have a significant negative impact to an in-jured worker and his or her family. The legislation must be amended to remove the cap on wage loss benefits.

remove the age cut-off for Future economic loss

(Fel) and loss of earnings (loe) Benefits

The Ontario government has introduced legislation to end mandatory retirement and the discrimination it en-tails for workers over age 65. However, it has allowed the provisions of the WCA and WSIA that allow wage loss benefits to be cut off based on a worker’s age to remain in place. The age cut-off for FEL and LOE benefits allows for older workers who become permanently disabled due to a workplace injury to be discriminated against on the basis of their age. The legislation must be amended to remove the age cut-offs in the Act.

non-economic loss (nel)

The monetary awards allowed for under the NEL provi-sions are meant to compensate injured workers for the pain and suffering caused by their workplace injuries. However, the amounts awarded are very small compared to the pain and suffering endured by injured work-ers who become permanently impaired as a result of a workplace accident. There is in fact no component in the NEL calculation that actually considers or compensates for pain and suffering. These awards are based on clini-cal impairment only. These small awards are often inter-preted by injured workers as an affront to their dignity and sense of self worth and are thought by many to “add insult to injury.” Ontario is the only jurisdiction in Can-ada that uses the age of the worker in determining the


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monetary amount of the award. This practice is clearly discriminatory. If the dual award system is retained, the base amounts for NEL awards should be substantially increased. At a minimum, NEL awards should be tied in to the maximum earnings ceiling rather than the age of the worker.

employment Benefits and canada Pension Plan

(cPP)

Injured workers who have an employee benefits plan when working only continue to receive those benefits for a maximum of one year post-injury. The employer’s responsibility ends at that point. The Board takes no ac-count of the impact of the loss of benefits, nor does it provide compensation or any alternative benefit plans. This adversely affects all injured workers and their fami-lies. Obviously the more severely injured a worker is, the greater the adverse impact. The Act should be amended to include a Board sponsored benefits plan for all in-jured workers and their families.

All workers rely greatly on CPP for their well-being when retired or disabled. The current WSIA creates major prob-lems for injured workers around CPP.

First, WSIA calculates the injured worker’s net wages for benefit purposes by deducting the amount which would be payable for CPP. This reduces the injured worker’s benefits. Yet under the CPP legislation, time spent on WSIB benefits does not count for purposes of calculat-ing CPP benefits. So there is no credit whatsoever to the injured worker for the time spent on WSIB. This is completely unfair. The Ontario government should work with the federal government to give injured workers’ full credit with CPP for the time spent on WSIB ben-efits. Until that is done, the WSIA must be amended so as not to deduct CPP from gross wages for purposes of the net earnings calculation. But the impact of WSIA on CPP is even more serious than this for injured workers’ disability benefits. Most important, the timelines for CPP and WSIB are not co-ordinated. What this means is that injured workers are put in an untenable position. To

qualify for CPP disability benefits, they must apply within two or three years after the onset of their work injury or illness. Yet, they qualify for WSIB support, benefits for vocational rehabilitation and return to work for much longer – up to six years or more post-injury. Especially for the most severely injured workers, they are forced to remove themselves from the labour market so as not to lose their CPP benefits. This problem would be solved by amending the CPP legislation as recommended above − to give full credit with CPP for the time spent on WSIB benefits, so that the need to consider applying for CPP disability benefits would not come until the end of WSIB benefit payments.

A second problem is that the current WSIA requires WSIB to deduct CPP disability benefits from WSIB benefits. This is unfair, since the CPP is funded completely from worker and employer contributions. The WSIA should be amended to stop the deduction.

restriction on entitlement for Mental Stress

The WSIA restriction on entitlement for mental stress is one of the ways that some workers with work-related disabilities are kept entirely out of the system. This is ar-guably a violation of the equality provisions of the Char-ter and the Human Rights Code in that it discriminates against mentally disabled workers based on the nature of their disability. As yet, this provision has not been suc-cessfully challenged, but it is most definitely open to challenge and while it remains in effect, it discriminates against an extremely vulnerable group of mentally dis-abled workers. The Act should be amended to remove the restriction on mental stress.

Bipartite Board of Directors

A bipartite Board of Directors must be established with half the members selected by the OFL and half select-ed by employers. This bipartite board would select the Board’s Chairperson and would hire the Chief Adminis-trative Officer. Both positions must be responsible to the workplace parties.


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occupational Disease Panel (oDP) and Scheduling

of Diseases

For generations labour activists and our supporters in the medical community have fought to improve the rec-ognition of occupational disease. Counting the tomb-stones has then provided the evidence the health and safety activists have used to argue for better protection for workers and reduce the suffering afflicted on work-ing people and their families.

In the area of occupational disease research and the creation of adjudication support material for occupa-tional disease claims, the system suffered a significant loss when the Occupational Disease Panel (ODP) was eliminated. The Act must be amended to re-establish and properly fund the ODP. Though the Occupational Disease Advisory Panel (ODAP) Report did a good job of outlining the legal principles that must be applied in adjudicating occupational disease claims, it would be significantly more helpful to workers and their survi-vors if more occupational diseases were included in the Schedules. The Act must be amended to require regular review and updating of Schedule 3 and Schedule 4.

Protection for occupational Disease victims and

Survivors

In 1998, through the introduction of the Workplace Safety and Insurance Act, the definition of disability (impairment of earnings capacity) was deleted from the legislation. Section 43 of the Act allowed for payment of Loss of Earnings (LOE) benefits where the worker suffered a loss of earnings due to the compensable injury.

From that point the WSIB carried on their practice of al-lowing LOE payments to victims of occupational disease where their claim was accepted after retiring from the workforce. This was consistent with their historic prac-tice of compensating occupational disease victims for their inability to earn.

This practice was challenged at the Workplace Safety Insurance Appeals Tribunal (WSIAT) in three specific

cases that confirmed the Board’s practice was not con-sistent with the reading of the legislation. Since these decisions, the Board has discontinued allowing LOE pay-ments to victims where the claim was accepted post-retirement, as they had no earnings at the time the claim was allowed.

The same argument has now been extended to survivors’ benefits. Under Section 48(3), which deals with periodic payments to a surviving spouse, the deceased worker’s net average earnings are used as the basis for setting survivor benefit levels. If the worker was retired at the time of death, the argument is that since the worker had no earnings there can be no payment of survivor ben-efits.

The unfairness of these two issues reflects an unfortu-nate and significant failure of the wording of the legisla-tion to appropriately compensate victims and survivors of occupational disease. If LOE payments were based on a worker’s “impairment of earnings capacity” as they were before the WSIA, then the Board could properly and fairly compensate those afflicted by the consequences of occupational disease.

name of the Board

It is an important symbolic issue for the worker community that the name of the Act, Board and Tribunal be restored to their previous forms, i.e. Workers’ Compensation Act, Workers’ Compensation Board, Workers’ Compensation Appeals Tribunal. This would recognize one of the key purposes of the system, which is to provide compensation to workers who are injured or made ill by their work. It would also signify the government’s commitment to the founding principle of providing fair compen-sation. The legislation must be amended to change the name of the Act, Board and Tribunal back to the Workers’ Compensation Act, Workers’ Compensation Board, and Workers ’ Compensation Appeals Tribu-nal, respectively.


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vocational rehabilitation History and Philosophy

When the Workers’ Compensation system was first es-tablished in 1914, its purpose was to pay injured work-ers compensation for loss of earnings resulting from injury, medical expenses and to protect employers from lawsuits.

It was not until 1924 that the Board started to provide rehabilitation assistance such as counselling, upgrading, retraining, etc., for permanently disabled workers who could not return to their pre-accident employment. It was not until the late 70s and early 80s that vocational assistance was viewed as a major responsibility of the Workers’ Compensation Board.

Even then, the Board’s efforts at rehabilitation were crit-icized by injured workers and unions. In 1987, these criti-cisms received public acceptance with the report of the Minna-Majesky Task Force on Vocational Rehabilitation. In 1989, Bill 162 gave the Board new powers with which to assist injured workers in returning to work.

As part of the package that abolished permanent dis-ability pensions in return for a dual award system (FEL’s and NEL’s), many employers became obligated by law to provide work for those injured in their employment.

Although Vocational Rehabilitation has always been at the discretion of the Board, it served the purpose − in many cases − of providing the assistance necessary to allow injured workers to return to meaningful work and reduce or eliminate any loss of earnings caused by the work-related injury.

In 1998 the Workplace Safety and Insurance Act abolished Vocational Rehabilitation and replaced it with Early and Safe Return to Work (ESRTW) programs and Labour Mar-ket Re-entry (LMR) plans. Of significance was the out-sourcing of LMR services to external providers.

LMR in its fundamental form was designed to get work-ers in and out of the system as quickly and cheaply as possible, with little regard to what happens to them when they completed their training. External providers

avoided publicly-funded education institutions in favour of private for-profit enterprises that provided abysmal services to the majority of its WSIB clients.

The most significant problem related to the fact that the goal of LMR was only to get workers back into the general labour market and not to ensure that they ac-tually managed to secure employment when they had completed their LMR services. In addition, workers were simply “deemed” to have the wages related to the suit-able employment or business (SEB) chosen during the LMR process, regardless of what their actual post-LMR earnings were. This is true even where a permanently impaired worker was never able to work again.

Further, in choosing a SEB for the worker, there was no requirement that the worker’s personal and vocational characteristics be taken into consideration. There was also no provision allowing a worker time to do a job search before their benefits would be cut off.

Research, audits and anecdotal evidence consistently demonstrated the failure of both of these programs to increase successful outcomes. The labour movement, through the OFL and its affiliates, commenced a cam-paign of Return to Work reform including reinstating LMR services internally within the WSIB.

The last five years have seen extensive consultation by the WSIB on the subject of Return to Work and Labour Market Re-entry:

• Consultation on early and safe return to work policies (January 2006)

• Second consultation on early and safe return to work policies (February 2007)

• Consultation on construction early and safe return to work policies (October 2008)

• WSIB chair’s consultation (June 2009)

the new Work reintegration Program

To help improve return to work outcomes for injured workers, the Workplace Safety and Insurance Board re-leased a new “Work Reintegration Program” that includ-


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ed interim Work Reintegration policies. The interim Work Reintegration policies became effective December 1, 2010 and after brief consultation adopted final policies effective July 15, 2011.

The new Work Reintegration Program was based on a comprehensive internal review of the LMR and RTW programs, consultation with worker and employer stake-holders, international best practices, and recommenda-tions contained in the 2009 KPMG LMR Value for Money Audit.

The Work Reintegration Program and policies integrated Early and Safe Return to Work (ESRTW), Re-employment and Labour Market Re-entry (LMR).

The new Work Reintegration Program was designed to improve sustainable employment for injured workers, either with their original employer or in the general la-bour market. For many years the OFL has lobbied for in-creased efforts, penalties and incentives to pressure em-ployers into retaining and accommodating their injured employees. In a unionized environment, re-employment with the injury employer is in almost all cases the pre-ferred solution that provides the maximum protection and opportunities for injured workers.

Under their new Program, the WSIB phased out the use of external LMR case managers. As of December 1, 2010, qualified WSIB staff is now responsible to manage in-jured workers’ pathways to employment.

The new philosophy is to provide injured workers with a sound assessment and, if needed, high qual-ity, credible training that will equip them for return to work.

Under the new Program, the WSIB is to ensure quality, work transition services and cost management by using community colleges and registered private career col-leges with Ministry of Training, Colleges and Universi-ties approved vocational programs. Injured workers are given the ability to decide which school best meets their needs. The assumption is that increased use of the public adult education system will provide greater assurance of

sound curriculum, qualified instructors and compliance with Ontario government standards and regulations, and standardized pricing of programs.

The elimination of external LMR service providers is a positive step and not an insignificant victory for workers and the labour movement. At a minimum, the return of this function to the WSIB will lead to greater account-ability in the system. Much will depend, however, on the ability of the WSIB to deliver the services that were for-merly outsourced to external providers.

Overall, the work reintegration policies contain very little detail. Not only are they less detailed than the policies they directly replaced, but a large number of policies have also been deleted. The net effect of this is that WSIB staff now has much less guidance and with it wider discretion in making decisions.

Although this will create greater flexibility in decision‐

making, it will also lead to reduced consistency and predictability for injured workers, employers and their representatives.

Maintaining the Momentum

The OFL fundamentally supports the principles of a new work reintegration strategy. The OFL and its affiliates believe that it is socially unacceptable and contrary to the intent of health and safety, compensation and equity legislation to maintain the status quo regarding work-place illness and injury and the return to work and em-ployment of workers with disabilities.

The OFL is also of the view that many employers and unions are trying to be more proactive in addressing the challenge of integrating workers with disabilities into the workplace, rather than just responding to legal de-mands.

However, a successful evolution of the WSIB’s new strat-egies will only be accomplished by a sincere commit-ment by the Board to provide education and enforce compliance. The OFL and its affiliates have consistently supported meaningful initiatives that work to benefit


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the workers and employers of the province of Ontario by promoting workplace compliance with legislative re-quirements and reducing the human and financial cost of occupational illness and injury.

The labour movement must maintain the momentum ini-tiated by the change in philosophy demonstrated by the WSIB’s new approach to work reintegration. The current system still has many flaws that need to be addressed to maximize the efficiency of the WSIB’s strategies and increase of successful work reintegration outcomes.

return to Work training agency

When good practices for RTW are followed and accom-modations made to make the work safer for the injured worker, it is not unusual to find that the work is now made safer for all workers.

In the present context, we know that far too many work-ers, employers and workplace representatives are un-aware of their legal rights and obligations regarding employment of persons with disabilities. This lack of awareness represents a significant barrier for workers with disabilities. This barrier will be significantly com-pounded by the introduction of the Board’s new Work Reintegration policies and directions regarding return to work.

The emerging strategy arising out of these initiatives, however, presents an opportunity to significantly im-prove workplace safety, accessibility and accommoda-tion. This can only be accomplished by allocating ad-equate resources to support workplace-based training for workers, employers and workplace representatives.

It is imperative that training be developed and provided which will counteract the prevailing culture of blame by raising awareness of the plight of workers with dis-abilities and the rights and obligations of workers, em-ployers and unions to accommodate them. Training must provide information on ways and means to remove bar-riers and promote best practices for establishing effec-tive return to work programs. The training must also be

designed to improve communications and cooperation amongst workers, employers, unions, insurance providers and health care providers.

We believe that basic training regarding RTW obliga-tions must be delivered on a parallel to that of legislat-ed OHSA training, such as WHMIS. A serious commitment to training initiatives and resources on a broad-based approach is vital to the success of the WSIB’s new Work Reintegration strategies.

Funding needs to be provided to the central labour body to develop and deliver comprehensive training regard-ing disability prevention principles and therapeutic RTW practices. The OFL’s Occupational Disability Response Team has a proven track record in this area. The fund-ing agreement must include a long-term commitment and not be subject to political whims. Funding should be provided under Section 7 of the Workplace Safety and Insurance Act so that the Agency is a designated entity.

WSiB intervention in Work reintegration

Although the WR policy sets out a broad range of pos-sible interventions, there is little detail with respect to when and how the WSIB will decide to intervene in the return to work process.

This lack of clarity creates uncertainty. Employers ap-pear to be more comfortable in defaulting to the direc-tions of the WSIB rather than participating in meaning-ful discussions with the worker and union in seeking amenable solutions. In some situations WSIB staff has been overly-aggressive in their participation in the RTW process demonstrating a lack of understanding or re-spect of “real-life” workplace issues. RTW and Work Tran-sition Specialists must be appreciative and respective of collective agreements, external negative influences on injured workers, attitudinal barriers and true functional abilities.

Policy needs to reflect clear roles and responsibilities on when and how the WSIB will intervene in return to work.


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Hierarchy of rtW opportunities

In earlier draft policy a hierarchy was set out clearly in policy that emphasized the pre-injury job as the starting point and overall goal of RTW discussions and actions. The notion of a return to work hierarchy that expressly included the employer’s legal obligation to accommo-date was a significant statement of commitment. Elimi-nation of a formal hierarchy in policy eroded the per-ception of the WSIB’s strong stance in enforcing human rights principles and evidence-based research and lead-ing practices of RTW. A RTW hierarchy highlights three fundamental principles:

• It recognizes that injured workers are more likely to restore their pre-injury income by returning to their pre-injury employment rather than entering the labour market.

• It respects the historic workers’ compensation principle that the system should attempt to put the worker in the position they would have been in if not for the injury.

• It explicitly includes the employer’s legal obligation to accommodate.

A return to work opportunities hierarchy determines how goals will be set with respect to return to work and work transition.

recognition of time to Heal

The need to allow an injured work time to heal has al-ready been recognized by the WSIB in its best approach-es guide Recognizing Time to Heal—Assessing Timely and Safe Return to Work. These principles are unfortunately seldom considered by employers or decision-makers. Therefore, the specifics and principles should be includ-ed in the policy.

consideration of a Worker’s Functional abilities

Functional abilities must be given a broad definition to address the realities of return to work for injured work-ers. The definition should take into consideration the

worker’s psychological functioning, including the psy-chological impact of the injury and its potential effect on proposed return to work options. Such factors can be significant barriers to successful return to work and must be addressed if return to work is to succeed.

The definition of functional abilities should include con-sideration of the worker’s psychological functioning in-cluding any psychological impact of or negative reaction to the injury and/or proposed return to work options.

Equally important is recognition that a worker’s pain is another important factor affecting a worker’s functional abilities. Without specific direction, decision-makers and employers will continue to rely on “objective” physical findings and ignore the workers’ “subjective” reports of pain to the detriment of the success of the return to work.

The impact of pain on an individual and on their func-tional abilities, especially in the early stages of recovery cannot be ignored without the consequences of the like-lihood of increased failure of return to work outcomes.

Job Suitability Disputes

According to the current policy and practice, where a finding is made that the offered job was suitable, the worker’s benefits are adjusted as of the worker’s next available shift.

This is clearly excessively punitive and, in some cases, contrary to law, will disentitle workers whose loss of earnings is actually compensable.

The current practice is based on the assumption that a worker who is unwilling to perform work that the WSIB has determined to be suitable is making a personal choice unrelated to the compensable injury. In reality, the real reasons are usually much more complicated than simply a worker not wanting to perform the work. In these types of situations the WSIB historically fails to recognize the effects of pain, psychological barriers, at-titudinal barriers, fear of re-injury, and the likelihood of being coerced to perform work that exceeds their func-tional abilities. These are clearly work-related factors


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and any one of them could cause a worker to be unwill-ing to perform work that has been found to be suitable.

In every such case, there should be a full investigation and discussion with direct involvement of the worker to determine the reasons for a refusal. Premature termi-nation of benefits coerces a worker to perhaps perform work that endangers their health and fuels an adver-sarial approach to RTW.

Precautionary Principle in rtW

It must be remembered that many times WSIB staff and employers rely on only the “Functional Abilities Form” to assess the nature and extent of the worker’s limitations and abilities. The information provided by the health care provider on these forms is scant, and at best only represents a snapshot of the worker on the day they were examined.

We know that in many cases the offer of work is not fully explained or understood before the worker undertakes an attempt to perform it.

It is therefore imperative that WSIB decision-makers pro-ceed with due caution when determining that a particular job offer is “safe”. The OFL suggests that decision-makers ought to adopt the “precautionary principle” when consid-ering the suitability and safeness of a job offer.

In its “strongest” formulations, the principle can be inter-preted as calling for absolute proof of safety before al-lowing new technologies to be adopted. In a more mean-ingful sense we suggest that the precautionary principle should provide that: “When an activity raises threats of harm to the workers health, precautionary measures should be taken even if some cause and effect relationships are not fully established.”

It should be specified in policy that it is the worker who decides what portions or tasks of a job offer can be per-formed safely, and the worker should be encouraged to exercise their rights under the applicable Occupational Health and Safety to ensure that they do not suffer ad-verse health effects by performing modified work.

When good practices for RTW are followed and accom-modations made to make the work safer for the injured worker, it is not unusual to find that the work is now made safer for all workers.

Definition of “Work”

The current policy states that “work” is used broadly and can include the combining of tasks and duties to con-stitute a temporary or permanent job. The policy fails to address possible perils of this approach.

If the combining of tasks and duties is being done as a genuine effort to accommodate a disabled worker who is a willing participant in the effort, such an approach could be positive for all involved. If, on the other hand, it is being done to get a worker back to work instead of simply allowing the worker a few days of needed recov-ery time, it may not be appropriate.

The bundling of lighter duties that are usually shared by a group of workers in order to create a job for an in-jured worker can have a negative impact on the return to work process. If the re-distribution of duties leads to disadvantaging co-workers, they may blame the injured worker for their heavier workload, creating significant at-titudinal barriers and a poor environment for the worker’s recovery. The strategy may also increase health and safety risks to the workers who are stripped of lighter duties and increase the amount of heavier tasks in their substitution.

employability

A finding that a worker may be unemployable is not ex-pressed or considered in policy. The absence of such de-termination fosters a false assumption that all workers are employable.

It is essential that policy specifically recognizes that some workers are competitively unemployable. Even if a worker is capable of working they may still be incapable of obtaining employment simply because they have a disability. Their loss of earnings is related to their com-pensable injury and should be compensated.


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Workers, who are for all practical purposes permanently unemployable, will not be able to benefit from return to work or work transition services. They should be award-ed full LOE benefits without having to endure unneces-sary attempts to put them through the work reintegra-tion system or deeming them at entry level minimum wage occupations.

Duty to accommodate

The current policy states that “employers and, where relevant, unions and workers, are expected to comply with human rights legislation and associated policies.” Noticeably, the WSIB is absent from the list. The WSIB has legal obligations to comply with human rights obli-gations and therefore should be included in the policy.

concurrent re-employment and non-cooperation

Penalties

The current policy provides that employers cannot re-ceive both re-employment and non-cooperation penal-ties in the same claim. In such circumstances, the WSIB is to select the penalty that is “most likely” to lead to “a positive RTW outcome for the worker.” The penalties under Section 86 are also capped to a maximum of one year.

There is no legal or reasonable justification for this pro-vision of the policy. If the WSIB intends to ensure greater employer compliance with co-operation and re-employ-ment obligations, then associated penalties cannot be fettered. There is no maximum penalty cap in the leg-islation.

Direct to Placement Suitable occupation (So)

A growing number of recent cases expose a systemic practice of the WSIB to deem workers to direct place-ment options. This offers an easy way to remove workers from the system without having to perform more sub-stantive investigations rather than rely solely on an as-sessment of transferable skills. These workers in turn re-

ceive very little assistance from the WSIB and once their job search and/or placement are complete will receive no further LOE benefits. Most low wage earners will un-likely get beyond the assessment of transferable skills stage and obtain work transition assessments or plans.

Experience confirms that far too many injured workers who were placed in direct entry suitable occupations were unable to find work. The very concept of the direct placement suitable occupation wrongly assumes that it is easy for a disabled worker to obtain a low‐paying job and ignores the reality that it is very difficult for a worker with a disability to obtain any job.

Work transition Plans Duration

There is a general requirement in policy that work tran-sition plans are not to exceed three years in duration. This arbitrary limitation is more based on financial con-cerns than what should be determined as necessary and appropriate in the individual circumstances.

Experience has demonstrated that many injured work-ers are unable to complete educational and training programs within the standard timeframes. These time-frames have been developed for persons who are not suffering the challenges presented by disability. Many injured workers require extra time to complete their programs as a direct consequence of their compensable injury. Time away from the training is sometimes neces-sitated by the increase of symptoms or for the treatment of their injuries. Any formal deadline or cap on comple-tion of work transition plans results in a significant dis-advantage to injured workers.

legislated Joint return to Work committees

Joint RTW committees need to be legislated in all work-places. The union must be formally recognized as a work-place party by the Board and the employer. Minimum training needs to be mandated by the Act. Workplaces must be provided comprehensive and inexpensive train-ing regarding RTW strategies and principles.


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eliminate experience rating

Ontario’s workers’ compensation system’s experience rating programs skew the lost time injury statistics for Ontario. Employers who are able to hide their serious injuries as no lost time medical aid accidents reduce their compensation costs and then become eligible to receive a rebate from the WSIB. The other side of this program provides penalties for employers who have a higher level of lost time injury statistics and costs. The money at stake for many employers can add up to mil-lions of dollars. In addition, efforts to accommodate injured workers now see injured workers coming back the next day to some sort of modified work. As a result, injuries that at one time would have been listed as lost time injuries are now being listed as no lost time medi-cal aid accidents. It does not matter whether legitimate modified meaningful work is being provided or if the employer is simply hiding the claim, the result is a re-duction in LTI claims not a reduction in accidents. In ad-dition to these financial incentives, the Ontario Ministry of Labour uses lost time injury statistics as a means to target workplaces for inspections. These are all tremen-dous incentives for employers to reduce the statistics.

Ontario’s workers’ compensation system has never put in place an evaluation system to monitor the impact of these programs on employer reporting practices.

The use of lost time injury statistics by the Ministry of Labour to measure health and safety performance and determine where to direct its resources is resulting in a misdirection of some of those limited resources.

It is for these reasons that labour feels that lost time in-jury statistics or other formulas which use these statistics in the calculations are not a valid measurement tool and should not be used to measure safety performance, de-termine incentives or be used for procurement practices.

We would go further and state that any claim that On-tario’s experience rating programs results in a reduction of accidents is intellectually and scientifically dishonest.

Experience rating for Schedule 1 employers has been voluntary since 1953 and mandatory since 1995. Yet there is no empirical evidence that experience rating promotes investment in prevention or RTW strategies. In fact, experience rating promotes bad practices as stra-tegic and dubious practices lead an employer to finan-cial rewards faster than with proper commitment and investment in health and safety and accommodation. The labour movement has called for the elimination of experience rating for years.

WSiB Funding review

In response to criticism from the Provincial Auditor, the WSIB has asked the government to appoint an indepen-dent third party to review its finances. The government picked the well-respected former Dean of Osgoode Hall Law School and former President of York University, Pro-fessor Harry Arthurs, who has chosen a panel of advisors that includes former CAW National President Buzz Har-grove. The Funding Review is expected to complete its work in January 2012 with recommendations on WSIB funding goals, premium rate setting, occupational dis-ease funding and benefit indexation. The OFL and its social partners are actively participating in the Funding Review’s consultation process, exposing the willingness of successive Tory and Liberal governments to drastically cut employer premium rates. At the same time, employ-ers cynically pointed to the WSIB’s “so-called” unfunded liability and called for benefit cuts for injured workers. Our primary goal is the restoration of full inflation in-dexing for injured workers within a sustainable, public workers’ compensation system, funded on a steady state basis similar to CPP.

Stigma of Being an injured Worker

In addition to the pain and frustration of injury, workers who get harmed on the job find themselves suddenly thrown into a world of suspicion; especially where the injury is invisible, e.g., back pain or RSI, etc.


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The emotional harm of the stigma attached to being an injured worker can be devastating; it is even self-destructive. We see the stigma everywhere: A claims ad-judicator says: “if you can get to the doctors, you can get to work”; the physiotherapist says: “sorry I can’t treat you – the WSIB doesn’t pay enough and has too many forms”; the employer says: “this worker just does not want to work”; the neighbour says: “hey my neighbour is on compensation, but there he is working in his garden – I am going to call the fraud line.” Co-workers resent doing the heavy tasks of injured workers who have been forced back to work too soon and face injury themselves.

When we get injured, we want a WSIB that believes us and supports us and we want neighbours, friends and co-workers who understand that healing takes time. That positive support helps with healing. That compen-sation is a right.

We must all work to respect and support our injured Sis-ters and Brothers. An injury to one is an injury to all.

Cope343


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